Posted
by
CmdrTacoon Wednesday September 17, 2003 @03:01PM
from the thought-we-settled-this-already dept.

dipfan writes "In a re-run of the Lotus v Borland case that went to the US Supreme Court, the High Court in London has allowed a copyright infringement battle between two rival airline booking programs to go to trial, despite agreement by all sides that the two programs are written in different code. The airline Easyjet is being sued by software house Navitaire, creators of an online booking system called Openres, over Easyjet's booking system named eRes, developed by Bulletproof Technologies of California. Openres was written in Cobol, while eRes was written in Visual Basic, and the programs are also different in structure.
But, according to the FT article: 'Parallels had been drawn between appropriating the "functional structure" of a computer system and commandeering the plot of a book, the judge noted.' If Navitaire wins, then any program that works like another program - even if written in different code - could be vulnerable. What happened to the principle that you can't copyright an idea? Bulletproof is counter-suing
Navitaire in the district of Utah."

These lawsuits are beginning to rely too heavily upon nit-picking small points. How long until Microsoft is allowed to sue OpenOffice.org because the "functional structure" of OpenOffice Writer infringes upon the proir art of Microsoft Word?

This is silly. I am suing all males of the human species, because their penis infringes upon my own penis's "functional structure" (although I admit that due to their vastly smaller size, our structures are different).

Come to think of it, I guess that my father would call me out on the whole "prior art" thing there.

My local LUG [udel.edu] invited a copyright lawyer from Widner last year to come in and talk about some tihng, and he covered this. He told us that copyright law protects not only the form but the basic plot as well. Were Shakespeare alive today, he would have a fairly good lawsuit against Disney for infringing on Hamlet.

Were Shakespeare alive today, he would have a fairly good lawsuit against Disney for infringing on Hamlet.

No, he wouldn't be a) the copyright would have already expired

If Disney existed since Shakespeare's time, copyright would last 500 years after the death of the creator, now. Naturally that doesn't mean that Disney would pay a penny to the descendants of Shakespeare.

I guess my question to the courts would be then how can there be so many multi-national auto manufacturers (pick any industry) in the world, all manufacturing competing product? If this thing is held up in court, then it doesn't seem a far stretch to government mandated monopolies to any company that can prove they were first.

Case in point: Arthur Author writes a book. Fred Filmmaker makes a movie based on Arthur's book. Are they the same expression of the idea? Very few people would say they are, but copyright law says they are different since each work gets its own copyright. But, copyright law also says Fred has to get Arthur's permission before he makes the film. Therefore, it's the idea which is protected, not just the expression of the idea.

This is silly. I am suing all males of the human species, because their penis infringes upon my own penis's "functional structure" (although I admit that due to their vastly smaller size, our structures are different).

That's actually a pretty good analogy.

The reason all rockets, missiles, spears and yes, penises (penii?), look functionally similar is because they all do pretty much the same thing: they penetrate some medium, and streamlining is a necessity. So why should it be surprising that two reservation systems, written in different code, should be functionally similar? (I would be surprised if they were not.) Unless the plaintiff can show proof that the defendant was actually eating off their plate, then the case should be thrown out.

And what if Boeing sued Lockheed because it built planes that were "functionally similar," in that its planes had swept-back wings and smooth cylindrical fuselages? It'd get laughed out of court.

Heck, I seem to recall that calculus mathematics was developed independently at roughly the same time. This kind of thing just happens, people. Get over it.

I think this whole nonsense about "Intellectual Property" is going to just implode in upon itself. The system is going to have to get seriously reformed. If it does not then we will have corporations suing each other, and individuals into oblivion. Respect for IP will decrease from the current high regard that people have for IP (as evidence by the success of Kazaa) to even lower depths. When nobody in society has any respect for even the concept of IP, then what will happen as

Then watch as Microsoft gets decimated (in the UK) by the likes of Apple, IBM (Lotus 1-2-3), Corel (Wordperfect), etc on the desktop.
As for suing over server technology- SCO will be around for years to come!

If what's at question is the copyrightable nature of functional structure, then we're free to draw from as many different fields as we'd like to prove prior art. Or, at least, that the subject is irrelevant.

As a very basic example, every english student is taught pretty much the same way to write an essay. Does that mean that whoever wrote the first essay can now file a lawsuit against all students across the world and history?

From a more recent perspective: Cars have four wheels, a power source, and a

So the comparing software to the funcional structure of ones wanker is worth a +5 insightful?

Knowing the meaning of the word wanker might be though. Your usage of the word suggests a wanker is a penis. It isn't, at least not in British slang, which is where the word originated.

wankwank - to masturbate e.g. He was wanking, or He had a wankwanker - person who masturbates. More commonly used to insult, e.g. You fucking wanker!. Associated hand gestures often used.wankered - drunk. e.g. He was totally wankered.

Other infinitely useful gems of the British lexicon include...

bollocks

name for testicles. e.g. she kicked him in the bollocks.bollocksed - drunk, e.g. I'm totally bollocksed,bollocked - in trouble. e.g. Jimmy got bollocked by the teacher for punching Tom.bollocking - see bollocked e.g. Jimmy got a good bollocking for punching Tom.bollocks - crap / not very good e.g. MS Windows is a load of bollocks or Fred talked such utter bollocks at the meetingbollock - Single testicle, or insult e.g. You stupid bollock

This case is being compared to Lotus v. Borland.
In that US case the trial court initially got found infringement. An appellate court overturned the decision, and the Supreme Court was split 4-4 with one judge not taking part.
That means that the Lotus v. Borland case is the law in only one circuit in the US. I would expect the courts in other circuits might very well reach a different decision.

A lot of patents are like this.. Vague concepts with no implementation details. Even if two different people have vastly different implementations that do the same thing, and one of them has a patent for the "thing", they can be sued. How is this different?

This is a place where the definitions in copyright and patent law become sketchy and begin to blur together. The question at hand seems to be one of whether GUI's and other elements of program I/O (this so-called "functional structure") come under copyright protection as elements of a creative rendering or patent protection as means of achieving a computational purpose; the idea that such elements may be shakily protected by both seems dangerous and a strong possibility, in Britain's case anyway (although the actual case has yet to commence).

I think that Mark Summerfield's famous "Letter from 2020" touched on this.

Fortunately, common sense prevailed, helped along by the good old dollar I've no doubt and they accepted both software patents and a redefinition of copyright to suit global corporations. Once the USA, Japan and Europe had uniform intellectual property laws to protect our corporations and our way of life, everyone else had to play ball or they couldn't trade. The result has been that every algorithm and computer program and every piece of music and film (after all music and film can be put into digital form and are therefore a form of software) have been patented. No more variations on Beethoven (unless you've got the patentees approval). No more amateur participation in music or film which might risk lowering standards. No more challenge to established business and business practices.

Alas, the osopinion site where the letter was published seems to be broken. But thanks to Google's cache,
you can still find it
[216.239.51.104]. (Could Google get into trouble for caching a subversive letter such as this:-)

Navitaire was arguing that BulletProof Technologies had studied the Openres system closely and produced a system that operated in the same way.

Okay, so the case has only been declared tryable, not that there was infringement. And though I don't agree that "studying closely" is an issue, I'm not sure we can say that the fact that they're written in a different language automatically disqualifies it from an IP violation.

If I take your Fortran application, use g77 to convert it to C++, change your name to mine and search-and-replace a few things, wouldn't I still be violating your IP?

If I take your Fortran application, use g77 to convert it to C++, change your name....

Yes you would, but it's an irrelevant example because you stole the original code. Changing nothing except the compiler is still an obvious violation, as is translating a best selling novel into a foreign language and laying claim to its authorship.

The BAD guys filed suit in London. The GOOD guys filed counter-suit in Utah. At least that is the only way to interpret these actions if you believe that the IP Regime is insane.

Bulletproof is counter-suing Navitaire in the district of Utah.

Get it? Bulletproof didn't initiate the crazy lawsuit, Navitaire did. EasyJet is the VICTIM of this insane IP Regime lawsuit because they used the Bulletproof's VB reservation system, which Navitaire claims infringes their copyright.

despite agreement by all sides that the two programs are written in different code

So, both sides agree that the code is different, and Bulletproof looks for a jurisdiction that is suitable for such craziness - and picks Utah. Probably read all the SCO nonsense and figured, if you have to go to court over something stupid, Utah's the place to be.

So what if it's written in different code? I can play pop songs on a trombone and record it. It's still the same song and it's still infringement.

Copyrighting an idea is wrong, but that's not what the question is here. This is an example of determining whether both products implement the idea in a close enough way to be infringement and code is completely irrelevant to that discussion.

So what if it's written in different code? I can play pop songs on a trombone and record it. It's still the same song and it's still infringement.

If you wrote your own dance song, just because it had 3 stanzas, a bridge, and a chorus, and was in F sharp, that doesn't mean that the authors of every other dance song that had 3 stanzas, a bridge, and was in F sharp could sue you for copyright infringement. That's the best analogy to this issue.

If the algorithms and the basic structure of the programs (the program flow) were absolutely identical, maybe, just maybe there would be a point here. But just the purpose of the program and some details of how it works for the user? Isn't that like suing every movie that has a chase scene in the beginning and a love scene just before the big climax?

Travel booking programs are particularly complex and it appears that the two programs here share enough logic for the VB version to be infringing.

It is not unreasonable: if I sing "happy birthday" on the air, I have to pay copyright fees. So if I rewrite someone's code in another language (or even the same language), why do copyright fees not apply?

It is far better that copyright be applied to this kind of case (assuming the infringing program actually is a rewrite, not a coincidence) than patent law. At least with copyright you know that a clean-room rewrite is safe. With patents you won't know until the lawyers knock.

... with a whole range of technology issues from copyright enforcement, through IP legislation, even some of the OSS policy that we are starting to see is that decisions are being taken by a generation of people who generally don't understand the issues. Until a generation that grew up with Technology become old enough to become law makers then we will continue to see decisions like this.

The BAD guys filed suit in London. The GOOD guys filed counter-suit in Utah. At least that is the only way to interpret these actions if you believe that the IP Regime is insane, and that Navitaire's claims of code parallels are in the same category as SCO's.

The case might not have much merit, but there's not enough detail for us to decide that - and no apparent reason to dismiss it as 'bizarre'. Don't you remember that Apple sued M$ over the 'look and feel' of Windows? And if I wrote a program that exactly duplicated the functionality of Warcraft III (even if all the code was my own) do you think I wouldn't get sued by Blizzard? Everything depends on what the patents and copyrights cover.

Data East released "Fighters History", an obvious clone of the wildly popular Street Fighter II. It had similar characters with similar moves...

Capcom lost, and the floodgates opened for folks like SNK and Sammy to inundate us with SFII clones, each one more derivative of the last!

This case, however, could be more than just "look and feel". If it turns out that Easyjet once licensed the original COBOL application (and big iron apps like that tend to ship with code), and decided to port rather than continuing to pay licensing fees...

It brings up an issue of interface vs. implementation. I ported a bunch of software for my employer a couple of years ago, and while I needed to duplicate the UI and the output of the ports, I was otherwise free to code it as I wished. (I was porting internally-developed test

I've always believed that I am the sole author of the ports (well, actually, my employer is, but that's a different story), regardless of the fact that I didn't actually design the outpu

Actually, the history of 20th century copyright law -- esp. in the US but in Europe as well -- is a blurring of the boundaries between idea and expression, those boundaries being the cornerstone of copyright law previously. This is primarily the effect of movie studios and producers suing people for similar adaptations of similar stories and winning. Siva V. writes about this in Copyrights and Copywrongs. Lawyers for the movie industry went to such lengths to protect their works from imitation that copyright law now recognizes a certain level of idea protection. It's ironic because the film industry got its power in the first place in part because of a strict boundary between idea and expression. But in any case it is not surprising to see this trend manifesting in debates over copyright of computer code.

So does American law. That hasn't changed, and that's not the point. The point is that lawsuits have led to a much looser interpretation of what constitutes copyrighted material. There is no formal idea protection in American law but the net result of these kinds of interpretations of the law is to protect ideas, even though they are not supposed to be copyrightable. In my opinion, courts don't understand technology enough and have been hoodwinked by clever lawyers over the years into believing that new

Going still further, the history of 20th century copyright law has seen an increasing "blurring" of an even more important distinction. Copyright law as interpreted by the courts has become so contradictory and muddled, it is virtually impossible for many authors and publishers to tell in advance whether what they plan to do is legal or not.

I personally experienced that in a big way. A little over two years ago I set out write the first-ever, book-length chronology of Tolkien's complex Lord of the Rings.

Ford has filed suit against General Motors for making something that also has four wheels and can transport passengers, by way of an internal combustion engine.

A Ford spokesperson has said: "There will be more lawsuits in the future against other vehicle manufacturers, but we felt like we needed to go after the biggest fish first.

"We realize that this will be met with some hostility, but we are doing this to protect a consumer, we feel that anyone else making such a product is watering down the concept of a 'vehicle' and that having this protected will allow us to continue to innovate.

"Also, we are in talks with SCO to discuss a possible licensing scheme, whereby all owners of non-Ford cars can pay a fee to have their cars properly licensed for Ford's IP."

Today Hanna-Barbera sued Ford, GM and the rest of the auto industry for stealing their idea, claiming Barney Rubble's car as the original 4-wheeled people-mover (Fred Flintstone had an older, 2-roller model. Several heavy equipment manufacturers will be sued tomorrow for their steam-rollers)

I assume the cow was sentenced to "death by being slathered in barbeque soft and slowly turned over a fire"? Judges gotta eat too! And if you don't beleive some women are witches, you've never met my wife!

How many ways are there to effectively and efficiently solve a problem/need? Won't most solutions begin to look similar? Will this continue until it's just the first company to come up with a solution that can put a copyright on the functionality? You think software is crappy now...

Sometimes these actions are considered tryable because no precedence current exists. It might be that there's no current ruling as to whether two differently written pieces of software which act the same are copies or not. So it might be that this case is tryable not because the plaintiff might win but because he or she might lose and so set a ruling.

"Parallels had been drawn between appropriating the "functional structure" of a computer system and commandeering the plot of a book, the judge noted.' "

Yea? Is that supposed to be illegal or something? I sure wouldn't have noticed with TV shows and movies commandeering plots all the time.
Is MTV (I think they were the first with Real Life) going to start suing all of the other networks for their use of reality tv shows?

In a way, they're right; there are basicly 2 ways of looking at software. The first way is to consider software some kind of apparatus, the second way is to consider it a work of art. And us Open Source guys always use the latter as an argument in our battle against software patents. So from that I deduce that most of "us" consider the latter approach the right one. At least, I do.

And that's a bit of a problem; lawsuits like the one described in the story are considered pretty normal in the music industry; if OpenOffice and MSOffice both were songs, OpenOffice would probably have to pay some kind of fee to MSOffice for using their intellectual property and we'd all consider that normal...

Anyway... It'd be interesting to hear what other people think about this because to me it is a fundamental problem with how I view the whole copyright/patent/freespeech-discussion.

One solution would be to consider the sourcecode a work of art and the resulting binary an apparatus but that would be ridiculous since it would introduce a huge legal difference between scripts and binaries which would be great to feed a huge discussion but clearly is not a practical solution. So maybe the question we (or at least I) should ask ourselves first, is "What exactly are the differences between sourcecode and compiled sourcecode from a moral and IP point of view?"

...that it must be a BadThing(TM). If this had been a favorable ruling, it would have been lauded as the height of reason & insight, no matter how twisted the logic. Good to see that the level of 'objectivity' around here hasn't changed.;)

You write a GPLed application... let's say for the sake of argument it is software to manage web servers. You write it in C.

Microsoft later releases their own web server management software written in C#. You are a certified Microsoft developer and you get the code through their "shared source" program. Upon inspection, you believe that they just took your C code and rewrote it in C#.

How about we make it such that software is protected by neither copyright nor patents!

With the WWW, the first person to post his code gets the credit, and anyone else who claims that code under their name has to face the prior art of the first person. There would be no legal recourse; the surfacing of the truth should be sufficient.

This is probably much more in line with BSD licensing, where anyone can use the code with proper credit given. Given that the WWW/Usenet/etc. provide a widely mirrored hard-to-fake timeline of history, it is extremely unlikely that devious behavior could last long nor is it likely that everything would decompose into anarchy.

Western civilization arose and became dominant through innovation - "Standing on the shoulders of giants." The way patent and copyright laws are going in the West, the giants not only no longer want anyone standing on their shoulders, they don't even want anyone casting similar shadows or reaching for the same goals.

Look to China, and expect them to walk a fine line between sufficient copyright and patent protection that we will still trade with them, yet avoid the sheer lunacy we're seeing now. I wouldn't be surprised if copyright and patent issues force dual-design, in some cases to separate internally acceptable from exportable. Through the next century China's domestic market will be the next boom area, and I doubt they're going to let Western copyright and patent silliness stop them from modernizing, even if it does prevent some exports.

We're imposing legal morbidity on our technology. Those who don't will have an edge over us.

A copyright is designed to protect the expression of an idea, not the idea itself. Likewise, a patent is designed to protect the implementation of an idea, not the idea itself. Ideas and thoughts are meant to be free; there should be no rights of exclusivity on human thought.

It is worthwhile to allow exlusivity on expression and implementation; this encourages development of better ways of saying things and better ways of doing things. To allow exlusivity on ideas themselves inhibits that.

People seem to forget this, and sue someone for reimplementing an old idea, or rewriting and old thought. So you get some idiot going to court because some other knucklehead "stole" his idea, even though it was implemented differently and completely independently.

Yes, one should be able to patent a particular design of a device that turns piss into beer. At the same time, he should not be able to patent the act of turning of piss into beer.

However, this all becomes blurred when you consider a process or an algorithm; is it a form of expressing an idea ("I just wrote some code that turns piss into beer!"), a form of implementing the idea ("Let's do this to turn piss into beer!"), or is it the idea itself ("Let's turn piss into beer!")? If copyright only is filed, then only the content of the code or the draftsman's plan is protected. If a patent is filed, then the means by which the end is reached is protected, but the end itself is not. The idea process should not, under any circumstances, be protected. If the end product is tangible (beer, or the format of an airline ticket), yes, that should be patentable. If the end product is an idea (a value, or the data contained in an airline ticket), that should not be patentable.

I believe that the relevant US case here is Whelan v. Jaslow [digital-law-online.info], in which the court finds that copyright protection of computer programs may extend beyond the programs' literal code to their structure, sequence, and organization.